Il risarcimento del danno non patrimoniale derivante dalla violazione dei doveri familiari

After a first part of the work concerning, in general, the matter of compensation for non-pecuniary damages, the thesis examines specifically the problem of the admissibility of the compensation for non-pecuniary damages resulting from the breach of the duties arising from the bond of marriage. For a long time in Italy the problem has been solved from the courts and the legal literature in a negative sense for various reasons, that can be related primarily to the specific sanctions provided by law for the breach of such obligations (for example, see the art. 151, comma 2 of the italian Civil Code) and to the unenforceability of marital duties with non-pecuniary content, as well as to the tendency to solve problems arising within the family without recourse to the court. Similarly, in Germany, where since the ‘50s the case law and doctrine have interested in this issue, the Supreme Court (Bundesgerichtshof) has always rejected claims for damages grounded on the application of § 823 of the BGB, since such provision has been traditionally interpreted as referring only to the protection of absolute rights, and it was considered that the violation of marital duties has to be reconnected exclusively to the consequences set, typically and exhaustively, by family law. In accordance with the increasing attention turned to the protection of the human rights, in the last ten years Italian case law has changed its opinion, recognizing that the violation of marital duties can lead to the application of the general remedy of compensation under articles 2043 and 2059 of the Civil Code, if the violation, due to its severity, has resulted in an infringement of fundamental rights of the spouse. In this regard, a part of the work is specifically addressed to the question of the nature of the liability of the spouse; in particular, it is analysed the possibility to apply analogically the discipline of contractual liability, since the damages at issue stem from the violation of specific obligations existing between certain subjects. After the examination of individual marital duties, a specific paragraph in the second chapter relates to the issue of liability of the third party who has been complicit in the violation of one of the conjugal duties (in particular, the duty of loyalty). The issue was generally resolved, both in doctrine and in jurisprudence, in the sense of the exclusion of liability of the third, because of his non-involvement in the conjugal relation, as the marital duties bind only the two parties of it. This solution has to deal with the idea that the liability of the spouse is a tort that arises from the infringement of fundamental rights of the other spouse, that are rights to which traditionally is recognized a protection towards everyone. With regard to the issue of damages in the relations between parents and children, to which is dedicated the last chapter of this work, I have examined, first of all, the problem of the damage descending from the breach of parenting duties, with particular attention to cases most common in practice, alleging breach of the duty to maintain the children, understood as deprivation of material assistance that may result in an impact not only on the pecuniary sphere of the victim but also on his personal life. I tried then to give an account of the possible areas of application of the tort law relating to the custody of children. In relation to this profile it was considered appropriate to separately analyse two distinct issues. The first relates to the indemnifiability of damage resulting from the violation of the right - duty to visit, especially in cases where the custodial parent prevents with his obstructionist behaviour the exercise of this right by the other parent. The second question concerns the discipline of art. 709-ter of the Civil Procedure Code, a provision introduced by Law n. 54 of 8 February 2006, which has attributed to the judge the power to order to a parent the compensation of damages suffered by the other parent or by the son, whenever "serious breaches" or acts that "hinder the proper performance of the mode of custody" or that, more generally, however compromise the minor. The application of this provision has raised many problems, examined in the last part of the thesis, with particular regard to the character of the remedies provided by the law.